In a recent grievance decision, Re Prince George and Prince George Firefighters, Local 1372 (Williams), 2016 CarswellBC 2591, a labour arbitrator reinstated a firefighter whose employment was terminated after being found guilty of possession of a stolen boat and trailer.

The arbitrator concluded that in order to justify terminating a unionized employee, there must be a sufficient nexus between the employee’s misconduct away from work, and his employment duties.

Facts

The Grievor had been a firefighter for 11 years with a pristine work record. There were no concerns with his honesty or work. In 2012, he purchased a boat and trailer for $9,500 from a fellow firefighter. The boat, reportedly worth approximately $30,000, had been stolen. The state of the Grievor’s knowledge when he purchased the boat was disputed.

The Grievor was arrested in 2013. The RCMP phoned the Grievor and asked to attend his property to investigate a tip that a stolen boat was located on his property. Within minutes of the call, the Grievor hooked the boat and trailer up to his car and began towing it away from his property. However, the Grievor’s property was under surveillance and he was arrested.

The Grievor lied about his acquisition of the boat and trailer in his initial statement to police, providing a story about how he purchased the boat, and three different purchase prices. He later admitted to the RCMP that he bought the boat from a fellow firefighter for much less, but he did not admit to knowing the boat was stolen. However, he made some comments that he had doubts about the deal, and suggested he “had an inkling in the pit of his stomach” about it.

The employer investigated and the Grievor reluctantly admitted to the arrest. The Grievor was placed on leave, but the employer did not initially ask if he knew the boat was stolen. When asked in a subsequent interview, the Grievor said it was a “grey area”. He also advised the employer of his attempt to flee with the boat. The employer allowed the Grievor to return to work with conditions, accepting that he was being forthright.

In the criminal proceedings, the court did not accept the Grievor’s evidence, and he was found to have known the boat was stolen. The trial was widely reported in the local media.

Upon learning of the verdict, the employer terminated the Grievor’s employment. The employer’s reasons, as stated at arbitration, included: the comments made by the judge regarding the non-acceptance of the Grievor’s evidence and his credibility, dishonesty and lack of judgment; the media reports and negative publicity; and concerns about the Grievor’s honesty during the employer’s investigation.

Arbitrator’s Reasons

The arbitrator found it difficult to reconcile evidence regarding the Grievor’s police statement and his evidence at trial and arbitration that he had no concern the boat was stolen. She noted that she had “grave doubts” as to his understanding of the underlying issue of his honesty. Nevertheless, she proceeded to consider the question of whether termination was excessive in the circumstances.

To this end, relying on Millhaven Fibres Ltd. and OCAW, Local 9-670, Re, [1967] O.L.A.A. No. 4 (Ont Arb), the arbitrator noted that in determining whether the Grievor’s conduct away from the place of work was a justifiable reason for discharge, there was an onus on the employer to show that:

The conduct of the Grievor harms the employer’s reputation or product;

The Grievor’s behaviour renders the employee unable to perform his duties satisfactorily;

The Grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him;

The Grievor has been guilty of a serious breach of the criminal code and thus rendering his conduct injurious to the general reputation of the employer and its employees;

The conduct causes difficulty in the way the employer properly carries out its function of efficiently managing its works and efficiently directing its working force.

The arbitrator found there was no direct link between the misconduct and the Grievor’s duties. There was no suggestion he could not be trusted to do his firefighting duties. The arbitrator accepted that it was an isolated incident by an employee with a pristine work record, not likely to be repeated. Moreover, he was not in a fiduciary position, and his duties did not expose him to the temptation of greed.

In short, the arbitrator concluded that there was an insufficient nexus between the Grievor’s misconduct and his duties to warrant termination. Accordingly, the arbitrator reinstated the Grievor, but declined to award wages, seniority or benefits from the date of termination to the date of reinstatement.

Take Away

Criminal convictions in and of themselves may not justify termination of an employee on the basis of dishonesty and lack of trust. Despite findings of misconduct in criminal proceedings, employers terminating for cause must establish that the misconduct actually relates in more than a general manner to the duties to be performed by the employee.

In 2009, John McCormick, an equity partner in the law firm Fasken Martineau DuMoulin LLP (the “Firm”) filed a complaint with the British Columbia Human Rights Tribunal, alleging the Firm’s requirement that equity partners retire from the partnership and divest their equity at age 65 was age discrimination in employment, contrary to section 13 of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”).

The Firm applied to have the complaint dismissed on the basis that the matter was not within the jurisdiction of the tribunal, and that there was no prospect that the complaint would succeed. The Firm’s primary position was that because Mr. McCormick was an equity partner in the firm, there was no employment relationship that could be the subject of a complaint under section 13 of the Code. The Tribunal denied the Firm’s application to dismiss however, and concluded that the relationship between Mr. McCormick and the Firm was one of “employment” for the purposes of the Code.

On judicial review, Justice Bruce of the Supreme Court of British Columbia agreed with the Tribunal, indicating that the application of the Code must be based on a conclusion that the complainant and the alleged offender are in an employment relationship in fact and in substance. In Mr. McCormick’s case, many of the attributes of his relationship with the Firm were the same as those found in a traditional employer/employee relationship and therefore the Tribunal’s decision to deny the Firm’s application to dismiss was justified.

The Court of Appeal disagreed however, and held that despite the broad, liberal and purposive interpretation that must be given to the Code, it is a legal impossibility for a partner to be employed by the partnership of which he or she is a member. The fact that the Firm’s management may exercise similar aspects of control over the partners as may be exercised by the management of a corporation over its employees does not change the relationship from one of partners running a business to one of employment by one group of partners over an individual partner. Accordingly, in a unanimous decision the Court of Appeal determined that there was no employment relationship, so the complaint should be dismissed. Mr. McCormick was subsequently granted leave to appeal this decision of the Court of Appeal to the Supreme Court of Canada.

On May 22, 2014 the Supreme Court of Canada released its highly anticipated decision dismissing Mr. McCormick’s appeal. Unlike the Court of Appeal which held that as a rule, it was impossible for a partner to be employed by the partnership of which he or she was a member, Madam Justice Abella, on behalf of a unanimous court, took a more contextual approach holding that that the primary question was to examine the essential character of the relationship between Mr. McCormick and the Firm and the extent to which it was a dependent relationship. While Justice Abella agreed with the Court of Appeal that on the circumstances of this case, it was impossible for Mr. McCormick, an equity partner in the Firm, to be employed by the partnership, she refused to close the door on finding a partner could be an employee in other situations. The key, according to Justice Abella, was “examining how two synergetic aspects function in an employment relationship: control exercised by an employer over working conditions and remuneration, and corresponding dependency on the part of a worker.” (at para. 23)

In this case, the Supreme Court confirmed that the Code is quasi-constitutional legislation and that the definition of employment for the purposes of the Code must be approached “consistently with the generous, aspirational purposes set out in s. 3 of the Code and understood in light of the protective nature of human rights legislation which ‘is often the final refuge of the disadvantaged and the disenfranchised’ and of ‘the most vulnerable members of society’”. (at para. 19, references omitted) Nevertheless, even considered in this philosophical framework, the Court found that the protections of the Code could not extend to Mr. McCormick.

Importantly, Justice Abella held that control and dependency are more than a function of whether a worker receives immediate direction from or is affected by the decisions of others, but whether the employee has the ability to influence decisions which critically affect his or her working life. In the case of Mr. McCormick, as an equity partner for some 30 years, he was part of a collective of individuals who had control over workplace conditions and remuneration—i.e. he was part of the collective employer and was not necessarily someone who was in a vulnerable position vis-à-vis that group. The Firm’s management structure and administrative polices to which Mr. McCormick was subject were not viewed as limitations on his autonomy making him dependent on the Firm, but rather, were viewed as necessary incidents of its management. Furthermore, though his income was pooled with his colleagues, his remuneration was set in accordance with his contributions to the Firm, in accordance with polices he would have had a right to vote to implement, and he drew income from the Firm’s profits and was liable for its debts and losses. Overall, the Court found that he was not working for the benefit of someone else, but to his own benefit.

Referring specifically to the decision of the Human Rights Tribunal, Justice Abella found that the Tribunal, in considering the control aspect of the relationship had given insufficient consideration to the underlying power dynamics of the relationship between Mr. McCormick and the Firm, and had focused unduly on the administrative polices which governed his activities within the Firm. In this case, where there was no genuine control over Mr. McCormick, an employment relationship could not be established for the purposes of the Code.

Justice Abella was careful not to close the door on other partners being found to be employees for the purposes of the Code in other circumstances. However, she was clear that such a situation would require normal partnership rights, powers and protections to be “greatly diminished”. (at para. 46). The Court was also careful to point out in obiter that while Mr. McCormick might not be able to avail himself of the protections of the Code, partners alleging discrimination nevertheless could have recourse against their partners with respect to the duties of utmost fairness and good faith required by the Partnership Act. However, the Court was careful to avoid commenting on whether such recourse was available in this instance.

Noteworthy, also released today was the United Kingdom Supreme Court decision of Clyde & Co LLP and another v. Bates van Winkelhof, [2014] UKSC 32. In that case, an equity partner in a law firm sought whistleblower protection granted to employees under the Employment Rights Act 1996. In this decision the Supreme Court came to the conclusion that the partner was a “worker” (as defined) for the purposes of that legislation. In that case, the Court was clear that there was no contract of employment between the partner and the firm in question, rather the decision turned on whether under the partnership agreement in question, the partner had undertaken “to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by that individual.” In this case, whether or not the partner was a worker turned largely on interpretation of the applicable statute in conjunction with the applicable partnership legislation. However, the Court also reviewed the concept of “subordination” (a permutation of the control and dependency test) and held that because the partner could not market her services to anyone other than the firm with which she was employed, and because she was an integral part of her business, she fell within the definition of worker in that case. Notably, the partner in question, although an equity partner, was junior in the sense that she received a fixed income and that there was a level of Senior Equity Partner above her, the antecedents to which appeared to fall more in line with the traditional benefits of partnership. Nevertheless, the Court in Clyde & Co did not necessarily focus on these factors in rendering its decision.

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